Opinion
654 EDA 2023 J-A12013-24
08-23-2024
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH WOODROW MCCAIN APPEAL OF: ALEXANDER A. YAROSHENKO
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered February 9, 2023 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000701-2016
BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E. [*]
MEMORANDUM
PANELLA, P.J.E
Alexander A. Yaroshenko of the Sun Surety Insurance Company appeals from the order entered on February 9, 2023, in the Court of Common Pleas of Pike County, denying his motion for remission of bond estreature and granting the Commonwealth's motion to deny remission of forfeited bail payments. After careful review, we affirm.
A prior panel of this Court set forth the relevant factual and procedural history:
[Yaroshenko] acted as a bail agent for defendant Joseph Woodrow McCain in a criminal case in which McCain was charged with rape and related offenses. Certification of Bail and Discharge, 12/5/16, 1. A bench warrant was issued for McCain after he failed to appear for a scheduled arraignment on March 2, 2017. Order,
3/2/17, 1. A second bench warrant was issued after McCain failed to appear for scheduled jury selection on November 3, 2017. Order, 11/3/17, 1. On November 13, 2017, the Commonwealth filed a motion to revoke and forfeit bail which at that time had been in the amount of $100,000.00 posted by [Yaroshenko]. Motion to Revoke, 11/13/17, ¶ 3. On November 16, 2017, the court granted the revocation and forfeiture motion. Order, 11/16/17, 1.
On December 1, 2017, the lower court granted defendant McCain's oral motion to reinstate bail and increased his bail amount to $150,000.00. Order, 12/1/17, ¶ 2. [Yaroshenko] continued to act as bail agent for McCain following the increase. Certification of Bail and Discharge, 1/22/18, 1. A third bench warrant was issued for McCain after he failed to appear for jury selection on January 3, 2020. Order 1/3/20, 1. On May 11, 2020, the Commonwealth filed a second motion to revoke and forfeit bail. On May 12, 2020, the lower court granted the second revocation and forfeiture motion. Order, 5/12/20, 1.
On November 20, 2020, [Yaroshenko] filed a motion to request a partial payment schedule on the forfeited funds. The lower court denied that motion without prejudice and granted [Yaroshenko] leave to file an amended petition. Order, 12/28/20, 1. The parties later entered a joint stipulation which agreed that [Yaroshenko] would make an initial payment of $75,000.00 of the forfeited bail funds, to be followed by seven monthly installment payments of $10,000.00 and a $5,000.00 final payment on September 1, 2021. Motion for Hearing, 1/7/21, attached Exhibit A, Stipulation, 1/7/21. The lower court approved the stipulation on February 11, 2021. Order, 2/11/21, 1.
On January 31, 2022, [Yaroshenko] filed a motion for remission of bond estreature in which he acknowledged the payment of $125,000.00 towards the $150,000.00 of forfeited bail and sought remission of $100,000.00 of the payments pursuant to 42 Pa.C.S. § 5747.1(b)(5), minus the unspecified costs for transporting defendant McCain back to the Commonwealth. First Bond Estreature Motion, 1/31/22, ¶¶ 3, 8-10. On March 3, 2022, the Commonwealth filed a motion to deny remission of the forfeited payments. On March 24, 2022, the lower court denied [Yaroshenko's] bond estreature motion, ruled that the Commonwealth's remission denial motion was moot, and vacated a scheduled hearing on the opposing motions. Order, 3/24/22, 1.
On June 23, 2022, [Yaroshenko] filed a second bond estreature motion in which he sought remission of $62,500.00 of the $125,000.00 in forfeited bail payments, minus the cost of transporting defendant McCain back to the Commonwealth. Second Bond Estreature Motion, 6/3/22, ¶¶ 3, 8. On June 26, 2022, the Commonwealth filed a responsive motion to deny remission of the forfeited bail payments. A hearing on the opposing motions was continued under November 3, 2022. See Commonwealth v. Gaines, 74 A.3d 1047, 1051 (Pa. Super. 2013) ("if a refund of forfeited monies is requested by a surety, the court is obligated to hold a hearing and consider the equities of the claim.") [(citations omitted)]; Commonwealth v. Nolan, 432 A.2d 616, 618 (Pa. Super. 1981) (hearing required on bail bondman's request for remittance of forfeited money). On February 9, 2023, the lower court issued an order denying [Yaroshenko's] second bond estreature motion and granting the Commonwealth's remission denial motion. Order, 2/9/23, 1-3. The court ruled that [Yaroshenko] was barred from any right of remission pursuant to 42 Pa.C.S. § 574[7.1](b)(3) based on his failure to pay the forfeited bail within 91 days of the forfeiture order. Id. at 2.Commonwealth v. McCain, 654 EDA 2023, at *1-2 (Pa. Super. filed Dec. 1, 2023).
Yaroshenko filed a timely notice of appeal and complied with the lower court's order to file a Rule 1925(b) statement. See Pa.R.A.P. 1925(b). Yaroshenko raises the following issues:
Whether the [lower] court committed an error of law and/or an abuse of discretion in its [c]ourt [o]rder of dated (sic) February 9, 2023,in denying [Yaroshenko] a partial remission of the forfeited bail as authorized by [42 Pa.C.S.A. § 5747.1(b)(5)] which permits the [c]ourt to remit all or a portion of the funds collected in exchange for the absence of the defendant, upon petition, even after the 91st day following the forfeiture?
Whether the findings of fact of the [lower] court were supported by substantial evidence?
Whether the lower [c]ourt erred and abused its discretion in failing to find that the defendant was recovered 13 months after the date of the [c]ourt's revocation of bail on May 12, 2020 and therefore 42 Pa.C.S.A. § 5747.1(b)(5) permitted the [c]ourt to grant [Yaroshenko] recovery of 50% of the value of the forfeited amount[?]Appellant's Brief, at 3. We will address Yaroshenko's three claims together, as they are interconnected.
Yaroshenko's claims involve statutory interpretation of Section 5747.1, therefore, our standard and scope of review are as follows:
Statutory interpretation is a question of law, therefore our standard of review is de novo, and our scope of review is plenary. In all matters involving statutory interpretation, we apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., which provides that the object of interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.
Generally, a statute's plain language provides the best indication of legislative intent. We will only look beyond the plain language of the statute when words are unclear or ambiguous, or the plain meaning would lead to a result that is absurd, impossible of execution or unreasonable. Therefore, when ascertaining the meaning of a statute, if the language is clear, we give the words their plain and ordinary meaning.Commonwealth v. Watts, 283 A.3d 1252, 1255-56 (Pa. Super. 2022) (citations and quotation marks omitted).
Section 5747.1 provides:
(a) General rule.--If a defendant in a criminal prosecution fails to appear for any scheduled court proceeding, the defendant's bail may be revoked and notice of revocation shall serve as notice of intent to forfeit the bail of the defendant. The notice or order of revocation shall be served by the office of the clerk to the defendant, surety or bail bondsman and insurer who has issued
the qualifying power of attorney for the bail bondsman by certified mail, return receipt requested.
(b) Payment.--The following shall apply:
(1) Ninety days from the date of the service of the notice of revocation or order of revocation, the revocation shall become a judgment of forfeiture, payment of which shall be immediately required by the defendant or surety. Failure of a bail bondsman to make a timely payment of a forfeiture judgment shall result in the district attorney or county solicitor commencing proceedings to suspend or nonrenew the license of the bail bondsman otherwise consistent with section 5746 (relating to suspension or revocation of authority to conduct business in a county).
(2) Payment of forfeited undertaking shall be made directly to the office of the clerk not later than the close of business on the 91st day following the service of the notice of revocation. If the defendant has been recovered and placed into custody through the efforts of the bail bondsman or proof has been provided to the court that the defendant was discovered by the bail bondsman to be in custody in another jurisdiction prior to the 91st day, no payment of the forfeited undertaking shall be required. If the defendant is placed into custody or discovered to be in custody, the court shall set aside the bail revocation and may release the defendant with the reinstitution of bail pursuant to the Pennsylvania Rules of Criminal Procedure. The bail bondsman shall not be continued by the court as surety on reinstated bail unless a written consent is signed by the bail bondsman agreeing to such extension of suretyship.
(3) Failure to render payment of the forfeited undertaking by close of business on the 91st day shall bar any right of remission to collect funds pursuant to the forfeited undertaking.
(4) The office of the clerk shall provide a summary quarterly statement of all overdue forfeited undertakings which have not been paid by each bail
bondsman and insurer. The bail bondsman or insurer shall be afforded 30 days from the date of the statement to render payment of the forfeited undertakings. Failure to render payment by close of business on the 31st day shall result in suspension of the ability to conduct business of both the bail bondsman and the insurer in that judicial district until such time as payment is rendered in full. The bail bondsman may be subject to formal suspension or nonrenewal proceedings pursuant to section 5746. In addition, the insurer may be subjected to further administrative penalties, to be determined by the department, consistent with the act of July 22, 1974 (P.L. 589, No. 205), known as the Unfair Insurance Practices Act, or other applicable law.
(5) If the defendant is recovered after the 91st day following the forfeiture, a surety may petition the court in which the revocation and forfeiture occurred to remit all or a portion of the funds collected in exchange for the absence of the defendant. The court shall remit payment as follows:
(i) If the defendant is recovered between the 91st day and six months after the order of revocation or forfeiture, the surety shall recover the full value of the forfeited amount of the bond, less an administrative fee in the amount of $250.
(ii) If the defendant is recovered between six months and one year after the order of revocation or forfeiture, the surety shall recover 80% of the value of the forfeited amount of the bond.
(iii) If the defendant is recovered between one and two years after the order of revocation or forfeiture, the surety shall recover 50% of the value of the forfeited amount of the bond.
(6) No third-party surety shall be responsible to render payment on a forfeited undertaking if the
revocation of bail is sought for failure of the defendant to comply with the conditions of the defendant's release other than appearance. Any violation of performance conditions by a defendant shall be deemed as a violation of a court order, subject to a conviction for indirect contempt of court for violating a court order instituting terms and conditions of release of the defendant and all associated penalties.42 Pa.C.S.A. § 5747.1 (footnote omitted).
Yaroshenko argues that he is entitled to partial remission based upon subsection 5747.1(b)(5). See Appellant's Brief, at 11. Yaroshenko further argues that the lower court erred in applying the three factors laid out in United States v. Ciotti, 579 F.Supp. 276, 278 (W.D.Pa. 1984) and adopted by this Court in Commonwealth v. Mayfield, 827 A.2d 462, 468 (Pa. Super. 2003).
The Ciotti/Mayfield factors require a court to consider "1) the willfulness of the defendant's breach of the bond, 2) the cost, inconvenience and prejudice suffered by the government, and 3) any explanation or mitigating factors." Mayfield, 827 A.2d at 468 (citing Ciotti, 579 F.Supp. at 278). Notably, our Supreme Court found that "a strict reading of the Ciotti/Mayfield construct" was inconsistent with law and justice and instead adopted a non-exclusive 9-factor test. Commonwealth v. Hann, 81 A.3d 57, 66-69 (Pa. 2013). However, Hann was decided prior to the enactment of 42 Pa.C.S.A. § 5747.1 on October 30, 2015, and based upon the plain language of Section 5747.1(b)(3), we find that the factors are inapplicable when the surety fails to render payment by close of business on the 91st day following the forfeiture.
The lower court held that the plain language of the statute, subsection 5747.1(b)(3), barred any relief:
In as much as [Yaroshenko] has failed to render full "payment of the forfeited undertaking[,"] being $150,000, we conclude that he has not fulfilled his obligation under the statutory requirements
for payment and remission of bonds, and is, at this time, barred from seeking remission of the forfeited undertaking.Order, 2/9/23, at 3. We agree with the lower court.
The plain language of subsection 5747.1(b)(3) provides that "[f]ailure to render payment of the forfeited undertaking by close of business on the 91st day shall bar any right of remission to collect funds pursuant to the forfeited undertaking." 42 Pa.C.S.A. § 5747.1(b)(3) (emphasis added).
On May 12, 2020, the lower court granted the Commonwealth's request to revoke and forfeit defendant's bail. Yaroshenko was served a copy of that order. See N.T. Hearing, 11/3/22, at 2 ("Mr. Yaroshenko has told me that he did receive the Forfeiture Order[.]"). Yaroshenko did not make any payment towards the forfeited bail within 91 days as required by subsection 5747.1(b)(3). The language of subsection 5747.1(b)(3) is clear and unambiguous, when either a defendant or surety fails to pay on the forfeited bond by close of business on the 91st day, he shall be barred from any right of remission. "By definition, 'shall' is mandatory." Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997) (citation omitted). As such, Yaroshenko cannot turn to subsection (b)(5) for his right of remission unless he can prove that he rendered payment by close of business on the 91st day following the revocation and forfeiture order. Yaroshenko did not present any evidence of his payment at the hearing on November 3, 2022, and the record reflects that Yaroshenko did not fully pay the forfeited funds even at the time of his motions for remission. See First Bond Estreature Motion, 1/31/22, ¶ 3; Second Bond Estreature Motion, 6/3/22, ¶ 3. Therefore, Yaroshenko is barred from receiving remission of forfeited funds he paid after the 91st day.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.